Excerpt:civil - recovery - clause 15 of letters patent (madras) - appeal under clause 15 of letters patent against refusal of grant of interim injunction preventing appellants from cultivating land - order in present case not judgment under clause 15 - appeal without leave incompetent - appeal not maintainable.
- - we think that it is not possible to extend the application of that rule to a case like this. if this condition is not satisfied, then clause 15 of the letters patent could not be invoked at all. we fail to see how any exception could be taken to the order sought to be appealed from......on the second point, which will be referred to presently. on this ground alone, the letters patent appeal has to he dismissed.7. there is another reason why the appeal could not be entertained. indisputably, this matter has arisen in the second appeal brought by the res-pondent against the decree and judgment of the district judge confirming that of the trial court as such, in our opinion, this is an order made by a single judge of this court in the exercise of appellate jurisdiction in respect of the decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the high court. all that the clause means is that it should be an order passed in the exercise of second appellate jurisdiction. the appellate jurisdiction exercised by the.....

Judgment:

Chandra Reddy, C.J.

1. The appellants seek to file this appeal under Clause 15 of the Letters Patent against the order of our learned brother, Anantanarayana Ayyar, J., refusing to grant an interim injunction restraining the respondent from obstructing the appellants from cultivating certain lands pending disposal of a second appeal preferred by the respondent against the decree of the District Judge, Mahboobnagar, confirming that of the District Munsif, dismissing the suit for recovery of possession of certain properties.

2. The office has raised an objection as to the maintainability of the appeal on the ground that the appellants could not take advantage of Clause 15 of the Letters Patent. The two grounds urged by the office are: (i) that the order in the present case cannot be described as a 'judgment' within the terms of Clause 15 of the Letters Patent and (ii) that as the order was made by the learned Judge in exercise of his second appellate jurisdiction the appeal without the leave of the learned Judge is incompetent.

3. It looks to us that both these objections are to be upheld. We find it difficult to agree with the contention of the learned counsel for the appellant, Sri Vaidya, that the order in question answers the description of 'judgment' within the wording of Clause 15 of the Letters Patent and as laid down by the judgment of the Madras High Court in Tuljaram Row v. Algappa Chettiar, ILR 35 Mad 1 at p. 7 (FB). The test propounded by the Full Bench in that case was where the adjudication would put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or, if its effect, if it ia not complied with, is put to an end to the suit or proceeding, then it is a 'judgment'. In the course of judgment, this is what the learned Chief Justice observed :-

'That test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to pat an ead to the suit or proceeding so far as the Court before which the suit of proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.' The learned Chief Justice added :- 'I think too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e. g., an order on an application for an interim injunction or for the appointment of a receiver is a 'judgment' within the meaning of the clause.'

4. The attempt of the learned counsel for the appellant is to bring the instant case within the latter rule. We think that it is not possible to extend the application of that rule to a case like this. It should be borne in mind that the application filed by the appellants, who are defendants-respondents in the second appeal, could not be described as ancillary to the suit or one filed with a view to rendering the judgment effective if obtained, for the reason that the application for an injunction has nothing to do with the reliefs sought to be obtained by the plaintiff and the injunction which the appellant asks for cannot in any way render the ultimate judgment effective because the relief he claims has nothing to do with the decree to be rendered in the second appeal. Thus, the temporary injunction asked for by the appellants is not an incidental proceeding.

5. In this connection, we may refer to a Full Bench judgment of the Madras High Court in Central Brokers v. Ramanarayana Poddar and Co., ILR (1954) Mad 1952 : (AIR 1954 Mad 1957) (FB) which has laid down that an order made under Section 10 of the Code of Civil Procedure or any other provision of law for the stay of trial of a suit is not a judgment' within the meaning of that term in Clause 15 of the Letters Patent. That doctrine applies with full vigour to this case, as this is an a fortiori case.

6. The untenability of the argument that the order in question is a 'judgment' within the purview of Clause 15 of the Letters Patent will become apparent when we turn to the learned counsel's argument on the second point, which will be referred to presently. On this ground alone, the Letters Patent appeal has to he dismissed.

7. There is another reason why the appeal could not be entertained. Indisputably, this matter has arisen in the second appeal brought by the res-pondent against the decree and judgment of the District Judge confirming that of the trial Court As such, in our opinion, this is an order made by a single Judge of this Court in the exercise of appellate jurisdiction in respect of the decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court. All that the clause means is that it should be an order passed in the exercise of second appellate jurisdiction. The appellate jurisdiction exercised by the single Judge should be in respect of judgments made in appeals by the Subordinate Courts.

8. The argument advanced by the learned counsel for the appellant in this behalf is that the order made by Anantanarayana Ayyar, J., could not be said to be in respect of a decree or order made in the exercise of appellate jurisdiction for the reason that the request of the appellants is unrelated to the decree or order made by the District Judge. If we should give effect to the contention of the learned counsel, then we have to dismiss the appeal without a second thought for the reason that it is only in regard to an order made by a Judge of the High Court in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court that Clause 15 could be invoked. If this condition is not satisfied, then Clause 15 of the Letters Patent could not be invoked at all. Be that as it may, we feel that the second objection raised by the office is substantial.

9. Even on merits, we do not think that there is any case for admission. We fail to see how any exception could be taken to the order sought to be appealed from. Apart from the question whether such a request for an injunction could be made by defendants in a suit, which was only for recovery of possession of certain properties, the learned Judge was in our opinion, justified in refusing stay for the reason that the appellants also claimed to be in possession of the properties. Be that as it may, we have no option but to reject the appeal not only on the ground of its not being maintainable but even on merits.